CWPOA/2662/2019 on 15 October 2026

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.

CWPOA No.2662 of 2019

Decided on: 15th October, 2026

Sudhir Kumar Chawla

...Petitioner

versus

State of H.P. and others

...Respondents

Coram

Hon’ble Mr.Justice Jiya Lal Bhardwaj, Judge.

Whether approved for reporting?1

For the petitioner: Mr. P.D. Nanda and Mr. Sandeep Chauhan, Advocates.

For the respondents: Mr. Hemant Kumar Verma, Deputy Advocate General.

Jiya Lal Bhardwaj, Judge (Oral)

The petitioner by way of present petition has prayed for the following substantive reliefs:- “i) The respondents may be directed to pay a sum of Rs.99,250/- to the petitioner which has been deducted from his gratuity unilaterally without any notice. ii) This Hon'ble Court may be pleased to issue a writ of Certiorari quashing paragraph 13 of the O.M. dated 14.10.2009, Annexure P-2 and further O.M. issued pursuant there to vide Annexure P-3 to P-8 by issuing a writ of mandamus directing the respondents to pay interest @ 12% to the petitioner on the gratuity amount of Rs.6.5 lakh and leave encashment amount of Rs.1,87,480 with effect from 14.10.2009, the date of issue of the notification for raising the limit of gratuity and from 26.8.2009, the date of issue of 1 Whether the reporters of Local Papers may be allowed to see the judgment?

notification for revision of pay scales with effect from 1.1.2006, as a result of which the petitioner became eligible for enhanced amount of leave encashment, till the amount was actually paid to the petitioner.”

2. Learned counsel for the petitioner submits that he has instructions to press only prayer No.1 and he is not agitating prayer No.2. His statement is taken on record.

3. Shorn of unnecessary details, the key facts of the case are that the petitioner was promoted to the post of Assistant Engineer (Electrical) on 07.05.1982, after completion of 14 years of service, on the same post on 06.05.1996. He was placed in the higher pay scale, pursuant to the Notification dated 01.09.1998 (Annexure R-1), on 07.05.1996 allowing him the next date of annual increment with effect from 01.05.1997. Thereafter, the petitioner was promoted to the post of Executive Engineer (Electrical), who retired from service on attaining the age of superannuation on 31.10.2008. After his retirement, he was paid the retiral benefits, but a sum of Rs.99,250/- was recovered on account of wrong pay fixation.

4. The petitioner feeling aggrieved by the said recovery made against him, has approached this Court inter alia on the grounds that the amount could not have been deducted from his gratuity and the said deduction is highly arbitrary. The wrong pay fixation of the petitioner is not as a result of playing any fraud or misrepresentation on his part and as such, prayed for direction to the respondents to pay a sum of Rs.99,250/-, which has illegally deducted from his gratuity immediately without issuing any notice to him.

5. The respondents filed reply to the petition and in preliminary submissions averred that the present petition is not maintainable in the present form for the reason that the Government as per Notification dated 01.09.1998 (Annexure R-1) had released four-tier pay scale to the different categories, including the category of Assistant Engineers, but later on, these orders were withdrawn vide orders dated 06.10.1998 (Annexure R-2) with the objective to frame guidelines for such release. The Government had issued detailed guidelines, vide communication dated 23.06.2000 (Annexure R-3) wherein, it was provided that all placements in the higher scales shall be given effect from the first day of January of the year next to the year in which an employee completes the required span for the placement in the higher scale. The petitioner was initially granted the higher pay scale after completion of 14 years of regular service as Assistant Engineer on 07.05.1996, allowing the next date of annual increment with effect from 01.05.1997 vide order dated 21.09.1998 (Annexure R-4), but in fact, as per guidelines issued by the Government vide letter dated 23.06.2000, the order dated 21.09.1998 regarding placement of the petitioner in higher pay scale was required to be reviewed and accordingly, he was placed w.e.f. 01.01.1997 in the higher pay scale instead of 07.05.1996, as the same was to be allowed from the first day of January of the year next to the year in which he had completed the required span of services. In view of the above stand, it has been stated that the petitioner was paid excess amount of Rs.99,250/- and the same has rightly been deducted from the retiral gratuity amounting to Rs.3,50,000/-, as per the revised pay scale.

6. The petitioner filed rejoinder to the reply and controverted the averments made therein.

7. I have heard the learned counsel for the parties and also perused the record carefully.

8. The petitioner was granted the benefit of four tier pay scales on completion of 14 years of service, on the same post, on 06.05.1996 as per the Notification dated 01.09.1998 (Annexure R-1) thereby allowing the next date of annual increment with effect from 01.05.1997. Subsequently, the said benefits have been withdrawn as per communication dated 23.06.2000 (Annexure R-3) issued by the Government, which could not have been done for the reason that the benefits earlier granted to the petitioner as per Notification dated 01.09.1998 (Annexure R-1) in exercise of the powers conferred by proviso to Article 309 of the Constitution of India.

9. The benefit of four tier pay scales were extended to the petitioner and granting him the higher scales giving effect on the first day of January of the year next to the year in which an employee completes the required span of placement in the higher scales, could have been altered only after taking recourse and exercising the powers under Article 309 of the Constitution of India, as was so done by issuing Notification dated 01.09.1998 issued by the Government of Himachal Pradesh. The benefits so granted can’t be altered by issuing communication dated 23.06.2000. Hence, the recovery effected from the petitioner, that too, from the retiral benefits, is illegal and unjust.

10. Learned counsel for the petitioner has placed reliance upon the judgment passed by the Principal Division Bench of this Court in LPA No.706 of 2011, titled, State of Himachal Pradesh and others vs. Dr.(Mrs.) Madhuri Dhadwal and connected matter, wherein the Division Bench of this Court had held that the placement in the higher scale on completion of particular number of years giving effect from 1st January of the next year would defeat the benefits granted in the Rules and the same can be done only by way of amendment in the Rules and unless the Rules are amended, the same cannot be withdrawn. Relevant para of the judgment reads as under:- “2. The learned Additional Advocate General submits that Annexure A-4 Government order dated 23.6.2000 has not diluted the Rules; it is not in violation of the Rules and it has only supplemented the Rules by laying down the procedure for the fixation of the revised pay scale. It is further submitted that the notification has been issued for the purpose of effective implementation of Annexure A-1 Rules. There cannot be any quarrel with the submissions made by the learned Additional Advocate General provided that the executive order does not interfere with the benefits already granted as per Annexure A-1 Rules framed under Article 309 of the Constitution of India. There is no dispute that Annexure A-4 notification dated 23.6.2000 is not a Rule framed under Article 309 in continuation of Annexure A-1. The same is only a notification for the effective implementation of the Rules. In that process, such a clarification has been issued for the effective implementation of the Rules. But the benefits granted in the Rules cannot be taken away in that process. That could be done only by way of appropriate amendment in the Rules and not by an executive order. Once the rules provide for the benefit of ACP on completion of 9 years of service in the entry scale, an employee is entitled to that benefit on completion of 9 years of service. To say that the placement in the higher scale on completion of 9 years would be only with effect from 1st January of the next year would interfere with the benefits granted in the Rules, unless the same is done by way of amendment in the rules. In the instant case, it is not so. It is only by way of an executive order. Therefore, on the well settled principle that the benefits under the duly framed Rules cannot be taken away by an executive order, the learned Single Judge has rightly held that Annexure A-4 Government order dated 23.6.2000 cannot take away the benefits already granted to the writ petitioner in terms of the Rules unless such a power is reserved to the Government either in the original Rules or by the amended Rules.”

11. In the present case also, the recovery from the petitioner has been done only when he was granted the benefits of higher pay scales with effect from 01.01.1997 instead of 07.05.1996, on the basis of a communication dated 23.06.2000 which is not under a Rule framed under Article 309 of the Constitution of India and this very communication was the subject matter in aforementioned judgment passed by the Division Bench of this Court and thus, the action on the part of the respondents to make recovery from the petitioner that too from his gratuity is totally unjust and contrary to the import of the Notification dated 01.09.1998.

12. Consequently, the present petition is allowed as far as it relates to prayer No.1 and the recovery of Rs.99,250/- made from the gratuity of the petitioner is held to be bad and the respondents are directed to refund the said amount to the petitioner within two months from today, failing which, the respondents shall pay interest

@ 6% per annum from the due date till actual payment. No order as to costs. Pending applications, if any, also stand disposed of.

(Jiya Lal Bhardwaj) 15th October, 2026

Judge (naveen)